Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

15 March 2014

"Look Behind You, Mr Caesar!"

Catching up after a flying — ok, driving — round trip to LaLaLand from Tuesday night through Thursday morning...

In the West (only more explicitly, not really more extensively, than in the rest of the world), political power has tended to arise from landed fortunes. Nobility is an obvious example; less obvious, but equally powerful, ownership of mineral and other limited-access-and-tied-to-the-land rights have supported a de facto nobility, most visibly from oil and coal. This is not an unqualified good thing. It will (and, arguably, already has) become obviously so as even more conglomerates built out of non-land-based fortunes pass to second and third generations; the strangeness of the Ford Motor Company since Henry Ford died will seem unremarkable compared to NewCorp, compared to Oracle, compared to KBR. If this is beginning to sound like one of those almost-dystopian novels of the 1950s and 1960s, it should... although the article puts forth much too narrow a definition of "rent-seeking" (which concerns use of any nonmarket power, not just political power — litigation over "unfair competition" can also be rent-seeking behavior, to note one obvious example; so is this) and ultimately undermines its arguments and conclusions through that overnarrowness.

Just about everyone agrees that the way original works of the fine and visual arts — that is, the originals made by the artist, not thousands of copies a la Kinkade — are auctioned and transferred is utterly, utterly insane and bears little relationship to the actual/long-term value of the pieces themselves. Even those in the system. It's no more insane than the way that publishing in all forms — book or periodical or whatever form; commercial or self-publishing or cooperative or whatever business structure — deals with individual pieces and copies of written works. The two fields are different only because one of them concerns the single originals and the other concerns widespread distribution of copies; the variety of insanity is roughly the same.

An interesting blog entry at Scientific Americanactually attempts — with some success — to engage with differing rationales regarding photographs on the 'net. The one blind spot in the piece is that it falls into the principle failure of copyright law: The presumption that there is a universal, or even predominant, purpose for both copyright as a whole and individual creators within discrete types of copyrighted works. Monoyios's fundamental assumption is that the economic motivational principles embedded in US visions of copyright are both necessary and sufficient explanations for all creative activity, even when that creative activity is subdivided into "find a tiny niche audience that you could never replicate if you were just knocking on doors in your physical community. If you succeed in getting people invested in your work and your story, they will create a market for you and support what you do." This is certainly a valid, and perhaps even majority, view of how photography can help enhance success for photographers via the 'net... but it is far from universal. Trying to pretend that there is a universal motivation for anything in the arts (or even discrete subsets) is part of what makes talking about the inherent diversity in motivations and methods so frustrating and ultimately noncommunicative.

Devan Desai asks a critically important question at Madisonian: "How Is Privacy Not a Class at All Law Schools?" I think there's a clear, but not obvious, answer: Because there's no universally accepted remedy. If one looks at the law school curriculum, one finds that virtually every course offered that is not a professor's self-designed seminar — and certainly every course for large classes and/or tested on the bar exam — concerns subject matter that has an accepted, narrowly defined set of judicially-managed remedies for violations. In Civil Procedure (including outliers like Federal Courts and even Evidence), the remedy is "you don't get heard on that." In intellectual property classes, the remedy is "damages, and probably an injunction," and which intellectual property theory provides the accepted decisional rule depends as much on remedies available under that theory as on function or scope (example: copyrightability of fictional characters). In Corporations, the remedy concerns change of control and scope of personal liability for organizational actions. And so on. But once privacy has been invaded, there really isn't a clear, accepted remedy or set of remedies; indeed, some invasions of privacy defy any remedy at all. Instead, there is no backward mapping from anticipated results to changing behavior.

Professor Desai is right that there should be an overriding theory-of-privacy course. Unfortunately, it doesn't fit within the scope of American law schools, and won't as long as there's a bar exam facing everyone at the end.

And the rest of the catching up must await other venues. Other times. Perhaps alternate histories.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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